Funding Deed of Agreement

Funding Deed of Agreement

FUNDING DEED OF AGREEMENT

Between

THE STATE OF QUEENSLAND

acting through the

Department of Infrastructure, Local Government and Planning

and

(Organisation)

RELATING TO FINANCIAL ASSISTANCE AVAILABLE UNDER DEPARTMENTAL FUNDING PROGRAMS

FUNDING DEED OF AGREEMENT BETWEEN THE STATE OF QUEENSLAND AND THE (ORGANISATION) FOR FINANCIAL ASSISTANCE AVAILABLE UNDER THE DEPARTMENT OF INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING FUNDING PROGRAMS

FUNDING DEED OF AGREEMENT

THIS FUNDING DEED OF AGREEMENT is madeon <Date>

BETWEEN:The State of Queensland acting through theDEPARTMENT OF INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING("the Department") ofLevel 12, 1 William StreetBRISBANE QLD 4000

AND:Organisation title ("the Organisation") of Street Address

BACKGROUND:

A.The Department administers a wide range of funding programs which aim to strengthen communities, support local governments and other organisations in serving their communities and improve social, economic and environmental infrastructure acrossQueensland.

  1. The Organisation may apply to the Department for funding under a number of those funding programs and may be successful in its applications.
  1. The Department and the Organisation enter into this Funding Deed of Agreement to provide terms and conditionsunder which the Department will offer and the Organisation will accept Approved Fundingunder the funding programs.
  1. Asthe Department is required by law to ensure accountability of public money and to be accountable for all Approved Funds provided by it to the Organisation, the Organisation agrees to expend and acquit all the Approved Funding it may receive from the Department pursuant to the operation of the Funding Deed of Agreement, Funding Program Guidelines and as approved in writing by the Department.

FUNDING DEED OF AGREEMENT BETWEEN THE STATE OF QUEENSLAND AND THE (ORGANISATION) FOR FINANCIAL ASSISTANCE AVAILABLE UNDER THE DEPARTMENT OF INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING FUNDING PROGRAMS

AGREEMENT:

1DEFINITIONS, INTERPRETATIONand SCOPE

1.1Definitions

In this Agreement, unless the context indicates otherwise:

Acknowledgment Guidelines” means the funding acknowledgment guide as published on the Department’s website.

“Acquittal Period”is 30 days from the Funding Period End Date.

“Allocation-based Funding Program” means a Funding Program where an applicant meets the criteria as specified in the relevant Funding Program Guidelines and is not required to complete an application.

“Application-based Funding Program” means a Funding Program where an applicant meets the criteria as specified in the relevant Funding Program Guidelines and is required to complete an application for the relevant Funding Program.

“Approved Funding” or “Approved Funds” means the maximum amount of monies specified in a Formal Advice of Funding Approval, to be provided by the Department to the Organisation during the Funding Period(s) for the sole purpose of the delivery of an Approved Project(s) under a Funding Program(s).

“Approved Project(s)” means:

  • projects to be undertaken by the Organisation under an Allocation-based Funding Program; or
  • theproject(s) approved by the Department under an Application-based Funding Program as described in a Formal Advice of Funding Approval.

“Background Intellectual Property” means Intellectual Property owned or controlled by the Organisation, including but not limited to Intellectual Property developed prior to or independently of an Approved Project(s), which the Organisation determines, in its sole discretion, to make available for the carrying out of an Approved Project(s).

“Business Day”or “Business Days”means a weekday or weekdays on which banks are open for business in Brisbane.

“Certificate of Expenditure Form” means the certificate of expenditure form completed in accordance with the template published on the Department’s website.

“Confidential Information” includes all trade secrets and know-how, financial information and other commercially valuable information of whatever description and in whatever form this information is communicated (whether by electronic means, in an electronic storage device, in writing or orally) and includes the interpretation, analysis and application of general information in the public domain.

“Eligible Expenditure” means the expenditure on items directly related to the delivery of an Approved Project(s) and as detailed in the relevant Funding Program Guidelines.

“Eligible Project Cost” is the total project cost, less funding contributions from other sources and costs that are ineligible for funding under the relevant program guidelines.

“Estimated Project Commencement Date” means the date the Approved Project(s) is expected to commence as advised in writing by the Organisation.

“Estimated Project Completion Date” means the date that the Approved Project(s) is expected to be completed.

“Eligible Organisation”means theParty that is eligible under a Funding Program to receive Approved Funding as defined in Funding Program Guidelines.

“Final Project Report” means the final project report completed in accordance with the template published on the Department’s website.

“Formal Advice of Funding Approval” means the letter from the Minister (or the person delegated to exercise the power):

  • providing details of the Approved Funds under an Allocation-based Funding Program; or
  • advising the project/s is/are approved and providing details of the Approved Funds for the Approved Project(s) under an Application-based Funding Program.

“Funding Deed of Agreement” means this document and all schedules and attachments to it.

“Funding Period”commences on the date of Formal Advice of Funding Approval and ends on 12 months (or as approved otherwise) from this date.

“Funding Period End Date is 12 months from date of Formal Advice of Funding Approval or as otherwise advised by the Department

“Funding Program(s)” means the Department’s Funding Program(s) under which Approved Funding has been provided.

“Funding Program Guidelines” means the guidelines for a Funding Program, as advised by the Department from time to time.

“Goods and Services Tax” or “GST” means an amount of GST payable under the A New Tax System (Goods and Services Tax) Act 1999 and A New Tax System (Goods and Services Tax Imposition – General) Act 1999 or otherwise imposed by the Commonwealth Government.

“GST Amount” means the amount calculated by multiplying the GST exclusive amount of the financial assistance as a taxable supply, payable under the terms of this Agreement, by the rate of GST applicable from time to time.

“Ineligible Expenditure”means the expenditure on items not directly related to the delivery of an Approved Project(s) and as detailed in the relevant Funding Program Guidelines.

“Intellectual Property” includes all copyright (including any future copyright), moral rights, all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trade marks (including service marks), registered designs, confidential information (including trade secrets and know-how), circuit layouts and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields as a result of the use of the Approved Funding in an Approved Project(s).

“Moral Rights” has the meaning given to that term in the Copyright Act 1968 (Commonwealth).

“Organisation” means the Party in receipt of Approved Funding.

“Party” or “Parties”means a party or parties to this Funding Deed of Agreement.

“Payment” means the first and subsequent payments of Approved Funding as advised in writing by the Department.

“Payment Schedule” means the schedule of payments in accordance with nominated timeframesas detailed in the Funding Program Guidelines oras advised in writing by the Department.

“Personal Information” means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

“Project Site” means the parcel(s) of land on which an Approved Project(s) will be improved, constructed or developed as specified in the Formal Advice of Funding Approval.

“Recipient Created Tax Invoice” means a tax invoice that may be issued by the Department as the recipient of a taxable supply.

“Special Conditions” means any special conditions relevant to the Approved Project as advised in writing by the Department (if applicable).

“Sub-agreement” means an agreement entered into between each Party under a previous Head Agreement with cross references to that previous Head Agreement.

“Tax Invoice or Invoice” means a document requesting payment for goods or services and detailing the supplier's name, the goods and services provided, the date these were provided, the amount due, the goods and services tax amount due, the terms of trade and the date of the invoice.

“Unexpected Event” means any circumstance beyond the reasonablecontrol of a Party which results in that Party being unable to perform an obligation on time, and includes, but is not limited to:

a)natural events like fire, storm, flood, landslide, washaway or earthquake;

b)national emergency;

c)terrorist act;

d)war; or

e)an order of any Court.

1.2Interpretation

In this Funding Deed of Agreement:

a)a reference to this Funding Deed of Agreementor other instrument includes any variation or replacement of the Funding Deed of Agreementor instrument;

b)a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of the statute, ordinance, code or law;

c)the singular includes the plural and vice versa;

d)the word “person” includes a firm, body corporate, unincorporated association or authority;

e)a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;

f)a reference to an accounting term is to be interpreted in accordance with approved accounting standards under the Corporations Act 2001 and, where not inconsistent with those accounting standards, generally accepted principles and practices in Australia consistently applied by an incorporated body or as between incorporated bodies and over time;

g)a reference to anything (including any amount) is a reference to the whole and each part of it and a reference to a group of persons is a reference to all of them collectively, to any two (2) or more of them collectively and to each of them individually;

h)a reference to the Department or any other government department or entity (“Existing Entity”) includes a reference to any department or other government entity (“New Entity”) established or constituted in lieu of the Existing Entity, and with (as nearly as possible) the powers and responsibilities of the Existing Entity;

i)if an act prescribed under this Funding Deed of Agreement, to be done by a party on or by a given day, is done after 5.00pm on that day, the act is deemed to be done on the following day;

j)the monetary amounts stated in this Funding Deed of Agreement are exclusive of GST;

k)reference to “$” or “dollars” means Australian dollars;

l)headings do not affect the interpretation of this Funding Deed of Agreement; and

m)a reference to a website by address or location is a reference to a website located at a replacement address or location.

1.3SCOPE OF FUNDING DEED OF AGREEMENT

1.3.1This Funding Deed of Agreement records the terms and conditions under which the Organisation will acceptthe Approved Funding.

1.3.2The Organisation acknowledges that the agreement between the Parties consists only of this Funding Deed of Agreement, the relevant Funding Program Guidelines, the Formal Advice of Funding Approval, written approvals and requirements of the Departmentand the applications of the Organisation for Approved Funding (if applicable), but in the event of any inconsistencies, the documents shall be interpreted in the following order of preference:

a)this FundingDeed of Agreement;

b)the relevant Funding Program Guidelines;

c)Formal Advice of Funding Approval;

d)written approvals and requirements of the Department as notified formally to the Organisation in writing;

e)the Organisation’s application(s) for Approved Funding (where applicable).

2 TERM OF FUNDINGDEED OFAGREEMENT

2.1This Funding Deed of Agreement commences on the date the last Party signs this Funding Deed of Agreement, and continues until it is terminated under Clause 12 of this Funding Deed of Agreement.

3NO ASSURANCE OF FUNDING

3.1.This Funding Deed of Agreement does not warrant that the Department will offer the Organisation Approved Funding under any Funding Program(s).

3.2.The Organisation acknowledges that receipt and retention of the Approved Funds is conditional upon the Organisation:

a)expending the Approved Funds on the Approved Project(s) only;

b)using the Approved Funding only for Eligible Expenditure and not for Ineligible Expenditure (where applicable);

c)not being in breach of any other funding arrangement with the Department; and

d)complying with all clauses of this Funding Deed of Agreementsubject to the operation of any competing relevant legislative obligations.

4OBLIGATIONS OF THE ORGANISATION

4.1.Application-based Funding Programs

The following obligations apply to an Approved Project(s) under anApplication-based Funding Program:

Project commencement

4.1.1.The Organisation is not to commence works on the Approved Project, unless prior written approval has been obtained from the Department. Works are considered to have commenced once actions incurring physical changes to the Project Site have been instigated.

4.1.2.The Organisation is not to make claims for payments until it has received the Formal Advice of Funding Approval and a current project management plan has been received by the Department in accordance with section 4.1.3.

Project management plan

4.1.3.Within one (1) month of the date of Formal Advice of Funding Approval (or such further time as approved by the Department), the Organisation must provide to the Department:

a)a current project management plan in an agreed format that includes, as a minimum, a project scope, project timings with key milestones such as design, tender and construction stages, costs, Estimated Project Commencement Date, Estimated Project Completion Date and, where relevant, a risk management schedule; and

b)dates when claims for payment are expected to be lodged with the Department.

Tendering and quotations

4.1.4.In the procurement of an Approved Project(s), the Organisation must comply with theLocal Government Act 2009 and other relevant laws.

4.1.5.The Organisation must supply to the Department, upon request, a copy of the successful quotation and associated contract documentation for the Approved Project(s).

4.1.6.Where the cost (either estimated or based on the value of agreements) of the Approved Project(s) exceedsthat estimated by the Organisation, the Organisation will absorb these additional costs.

Project management

4.1.7.The Organisation acknowledges that the Department is funding the Approved Project(s) for the public benefit, which includes allowing members of the public reasonable access and rights of use of the Approved Project(s). The Organisation will manage the Approved Project(s) in such a way to ensure this occurs.

4.1.8.The Organisation will not commence construction of the Approved Project(s) until all development, building and other associated approvals have been obtained.

4.1.9.The Organisation must complete the Approved Project(s) on or before the Funding Period End Date.

4.1.10.The Organisation will engage or nominate from within the Organisation, a suitably qualified project manager with the relevant skills and experience to undertake the management of the Approved Project(s).

4.1.11.If the Department reasonably forms the opinion that the person selected as the project manager does not have the skills, qualifications or experience to undertake the Approved Project(s), the Department may require the Organisation to appoint a project manager suitable to the Department.

4.1.12.Where any alteration, addition, refurbishment or demolition of a building containing asbestos material is proposed, the Organisation must comply with the Work Health and Safety Regulation 2011 which requires owners of buildings built on or before 31 December 2003 to keep an asbestos register at each workplace where asbestos materials have been identified.

4.1.13.The Organisation must ensure that the project manager is made responsible for ensuring the asbestos register is reviewed by the contractor to determine the exact location of any asbestos materials prior to commencement of any work on the building.

4.1.14.Where works are to be performed on buildings containing asbestos materials the Organisation must ensure all contracts include clauses:

a)alerting the contractor of the need to access and assess the asbestos register;

b)requiring the contractor to disclose the location of further asbestos materials; and

c)about the costs of removal of asbestos materials.

4.1.15.The Organisation will allow the Department and its agents:

a)access to the Project Site prior to, during and/or after completion of the Approved Project(s) on three (3) business days’ notice; and

b)access to the contracted or nominated project manager on three (3) business days’ notice. The Organisation must render all reasonable and necessary assistance to enable the Department to undertake project monitoring and oversee the progress of construction and development on a regular basis.

Variations and record management

4.1.16.The Organisation must not amend, waive or fail to give effect to any material part of an Approved Project(s) without the prior written approval of the Department.

4.1.17.Any variation to an Approved Project(s) must be approved in writing by the Department prior to that variation being effected. A variation to the Approved Project(s) may impact on the level of Approved Funding

4.1.18.The Organisation must notify the Department in writing no later than two (2) months prior to the end of the Funding Period End Dateif theOrganisation desires to vary an Approved Project(s) in any way or decides not to completean Approved Project(s).

4.1.19.Where project works have been delayed for any reason, the Organisation must immediately notify the Department detailing reasons for the delay and the anticipated date of recommencement of works.

4.1.20.The Organisation must include, with any variation request involving an extension of time to complete the Approved Project(s), a revised project management plan, detailing the milestones for the extended timeframe and reasons for the request.

4.1.21.Where an Approved Project(s) is cancelled for any reason, the Organisation must immediately notify the Department detailing the reasons for cancellation and return all unspent Approved Funding to the Department.

4.1.22.Should project expenditures or timeframes vary following commencement of the Approved Project(s), the Organisation must provide updated cash flow forecasts and revised project timeframes to the Department within ten (10) business days of these variances being identified.

4.1.23.Should the Eligible Project Costs be reduced due to income confirmed from another source of funding, the Organisation must notify the Department within ten (10)business days, to enable the Department to adjust the maximum fundable amount allowable under the relevant Funding Program Guidelines.